Battle looms on prisoner voting rights

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06 Sep 2019 — By Rod Vaughan

Should prison inmates have the right to vote? And is the current situation, where prisoners have been banned from voting since a 2010 amendment to the Electoral Act, a breach of the Treaty of Waitangi?

Greg Newbold, Steven Zindel & Marie Dyhrberg QC

The majority of lawyers spoken to by LawNews favour restoring the right to vote to prisoners. But opinion is divided on whether it is a treaty issue, with many saying it’s simply a question of basic human rights.

And even if the government tries to reverse the ban, it may not have the numbers to get a law change through the House.

The debate was reignited last month with a Waitangi Tribunal report calling on the government to change the law in time for prisoners to vote in the 2020 election.

Prior to that, Judge Patrick Savage, deputy chairman of the Waitangi Tribunal, wrote to a handful of Labour MPs, telling them the current legislation did not comply with the Crown’s Treaty of Waitangi obligations.

Not only would a law change enfranchise prisoners but it could have other flow-on effects, Judge Savage said.

“We were told that voting is a learned habit [and] once acquired is likely to be repeated.

“Prisoners represent a captive audience so there is a very real possibility to inculcate them into the democratic process rather than dislocate them from it as this legislation does.”

It is not difficult to find lawyers who agree that prisoners should have the right to vote.

She does not buy the argument that prisoners have breached the social contract equating the right to vote with an obligation to obey the law, and that committing a crime is connected to a disrespect for the law.

Committing crimes “cannot be reduced simply to a lack of respect for the law”, Dyhrberg says.

And the punishment is arbitrary. “It is only those who have been sentenced to imprisonment who are disenfranchised. Those who have been sentenced to home detention or receive a fiscal penalty have also showed disrespect for the law but they do not lose the right to vote.”

As Dyhrberg sees it, democratic government is based on participation of the whole adult population. It is a fundamental human right, not a privilege. “The disenfranchisement of prisoners does not protect our democratic values; rather, it undermines them, particularly as it does not serve any discernible legitimate aims.”

Nelson criminal lawyer Steven Zindel is in the same camp.

Zindel, who is on the executive of the Criminal Bar Association, says not giving prisoners the vote will alienate them even further and hinder their rehabilitation.

In the other corner is lawyer and former ACT MP David Garrett. He is categorically opposed to restoring the right to vote to prisoners.

“My position on this, as you would expect, is pretty straightforward,” he says.

“Given that it is now very difficult to get sent to jail in New Zealand, and that the average prisoner has 46 convictions, it could be argued that in a very real sense those in there are ‘outlaws’ who have chosen to thumb their noses at, and show their disdain for, the rules and standards of conduct which govern the rest of us.

“That being the case, why on earth should outlaws have some say in making the rules which govern society, rules that they have shown by their conduct that they are not prepared to abide by?”

Māori rightsBefore 2010, only prisoners serving sentences of three years imprisonment or more were prohibited from voting.

At the time, the amendment was described by then Opposition Justice spokesman Andrew Little as part of a “fascist” culture against criminals.

The Waitangi Tribunal is also critical of the process behind the law change: it believes the manner in which Crown officials supported and advised the Law and Order Select Committee failed to provide sufficient information about the specific effect the legislation would have on Māori, as well as Crown rights and obligations under the treaty.

By failing to provide adequate advice, the tribunal says the Crown has failed to actively protect Māori rights.

Additionally, it found that being unable to vote had the potential to affect Māori prisoners beyond their time in prison, impacting their whanau and their community.

Little, now Justice Minister, says the tribunal’s report and a Supreme Court decision saying the 2010 law change breached the Bill of Rights Act 1990, makes a compelling case and the issue will be considered by Cabinet in the coming weeks.

“The point the Waitangi Tribunal was making was that for prisoners who get taken off the roll, Māori prisoners in particular, seldom ever go back on the roll.

“And because there are disproportionately more Māori in prisons – they’re over 50 per cent of the prison population – that policy, particularly as it applies to prisoners on short-term sentences, is having a disproportionate effect on that population, as opposed to others.”

Little says the report doesn’t deal with the issue of criminals losing their citizens’ rights because they had breached their obligation as citizens.

“There is a legitimate debate about which citizens’ rights you lose.”

Such sentiments may be shared by many in the legal profession but they are unlikely to sway the National Party which is standing firm on a blanket ban, saying it will block any attempt to reverse it.

For the moment though all eyes are on the government’s coalition partner, New Zealand First.

Leader Winston Peters is keeping his cards close to his chest but judging from some of his recent comments the government may be hard-pressed to restore voting rights to prisoners.

“There are certain aspects of it which don’t make any sense no matter what your view on law and order is or what your view on punishment is,” Peter says.

“But I want my caucus colleagues to have a full-scale discussion on it and then we’ll tell you what our answer is.”

Is it racist?One person with ‘inside’ knowledge of the debate is Greg Newbold who, in a much earlier life, was jailed for drug dealing.

In 1975 he was in the first cohort of prisoners given the vote when then Justice Minister Dr Martyn Finlay was instrumental in changing the Electoral Act.

“But Labour lost in a landslide (by 23 seats) and incoming Minister of Justice David Thomson (a former POW) had the law changed soon after National took power in the 1975 election.

Newbold supports the Waitangi Tribunal’s call for a law change but says its “racism argument” is “total nonsense”.

“Race has nothing to do with it. The fact that a disproportionate percentage of Māori commit violent offences and end up in jail is not an argument for all prisoners to get the vote.

“If a disproportionate number of Pakeha were in prison as was the case before WWII, would the same argument hold?

“No it wouldn’t. So the point is invalid. The treaty promises equal rights, not special rights. The only valid argument is human rights which should apply to all citizens.”

But should those human rights be extended to terrorists imprisoned for the most heinous crimes? And if convicted, should the accused Christchurch mosque shooter have the right to vote?

Newbold draws no distinctions between them and any other prison inmate.

“In principle, I think everyone should be able to vote if they are New Zealand citizens.

“If we exclude people from voting because we don’t like their politics, then we don’t have a democracy. So if [the mosque shooter] was a New Zealand citizen, then absolutely I think he should be able to vote.”

Democratic rightAUT law professor Kris Gledhill takes a similar view.

“It is very much a judgment call,” he says.

“The international human rights bodies have made it clear that decisions such as excluding those convicted of terrorism or mafia-style offences, which are based on rejecting democratic society, are open to a state.

“My own view, which is based on a glass half-full approach to rehabilitation, is that you reduce the prospect of rehabilitation if you exclude someone from the core democratic right of voting.”

“[It’s] problematic from a discrimination perspective because of the disproportionate number of Māori and Pacific Island peoples in prison, including at the short-term sentence level.

“Pakeha sentenced to a short-term sentence will often get home detention whereas Māori will often be in prison. And remember that we imprison at a relatively high rate, particularly for Māori.

“In short, our statistics reveal we imprison Māori at US levels and Pakeha at just above Scandinavian levels, which produces an overall rate that is higher than Australia, Canada, the UK or Ireland.

“So I am in favour of extending the vote to all prisoners, perhaps with a caveat that a judge could direct the loss of the franchise for those whose offences target the existence of democratic society.”

David Garrett accepts that depriving prisoners of the right to vote is discriminatory but says prison is “all about deprivation of rights”.

“Deprivation of liberty [is] the most obvious and most serious, but also deprivation of the right to have a beer after work, the right to have sex with one’s spouse or partner, and the right to access the internet and enjoy the plethora of information and entertainments that are available there.

“Deprivation of the right to vote seems entirely consistent with that regime.”

However, Garrett says it’s “patent nonsense” to suggest the voting ban is racist.

“Sentenced prisoners are presently denied the right to vote whatever their crime, and whatever their race, religion or creed. Māori prisoners are no more or less deprived of the right to vote than any other.

“Article Three of the Treaty – the one that Māori radicals never refer to - essentially gave Māori New Zealanders the same rights, responsibilities and privileges as those enjoyed by any other citizen of the country.

“How can treating Māori prisoners exactly the same as any other prisoner be a breach of the treaty?

“A first-year law student – or at least a law student who had completed the compulsory paper on Public Law – could tell you that this claim is complete nonsense.”

Drawing the lineSteven Zindel, who has more than 30 years’ experience as a criminal lawyer, believes a more holistic approach is needed.

“The big point is that we are one community with some people making more of a contribution than others. The homeless, the captains of industry, the wife beaters, the good sorts, the tax evaders, the saints and, yes, the criminals all should be able to express their democratic will because we are all in this game of life together.

“As soon as you make distinctions between worthy citizens and others, where do you stop? Do you go from the Chinese Social Credit idea to relegating some to untermenschen status?

“Take it from me, nearly every defendant is salvageable in one way or another. They might be simple or cunning or thoughtless or bad on occasions but they will surprise you with their good qualities at other times.”

Zindel says denying prison inmates the right to vote is “surely a way to alienate them still further and make it harder for them to rehabilitate and reintegrate with our society.

“On emotional grounds, you might want to take the right to vote off lifers or sex offenders or whatever, but then again when you start drawing lines, arbitrariness creeps in.

“A murderer may have turned over a new leaf. A sex offender might be a 17-year-old with a 15-year-old girlfriend. Let s/he who is without sin, cast the first stone!

“Obviously, there are deranged people in and out of jail who may not have the mental faculties to vote but they should be few in number.

“Should the alleged Christchurch mosque shooter vote if he were a permanent resident? I say yes. His participation in our democracy is actually a win for the democracy even if he votes for a fringe candidate.”

Zindel says depriving those at the bottom of society from voting “just pushes them further down”.

“Once your place on the electoral roll is removed then it can be difficult for those with little confidence, organisation or literacy to get back on again.”